2.The orders of the Supreme Court made on 22 December 1999 be set aside;
3.The proceedings be remitted to the Supreme Court of the Australian Capital Territory for further hearing in accordance with the reasons given;
4.The appellant pay the respondent’s costs of this appeal.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
A 1 of 2000
BETWEEN:
MICHAEL KELLY Appellant
AND:
ELISABETH MARY APPS Respondent
JUDGE(S:
GALLOP, WILCOX and MARSHALL JJ
DATE:
19 MAY 2000
PLACE:
CANBERRA
REASONS FOR JUDGMENT
WILCOX J: This is an appeal against a decision of Miles CJ given in the Supreme Court of the Australian Capital Territory and the proceeding before his Honour was an application to make absolute an order nisi made on 16 April 1999 by Higgins J. The paragraph (1) of the order nisi called upon the respondent, Elisabeth Apps, to show cause before the Australian Capital Territory Supreme Court why the decisions of the Magistrates Court should not be reviewed. The relevant decisions were decisions made by a Magistrate exercising summary jurisdiction under Part VII of the Magistrates Court Act 1930. That Part confers on the Magistrates Court jurisdiction to deal in a summary way with certain offences which are able to be prosecuted on indictment.
It is not necessary to go into the detail of the offences other than to say they involved a claim of defrauding the Commonwealth. The Magistrate acquitted Ms Apps of each of the charges and an application for an order for costs was then made. Her Worship heard argument about the application in terms of principle before considering the amount of any costs that ought to be put. At the conclusion of that argument she indicated a view that costs ought to be ordered, however, there was a difficulty about the quantum.
Mr Pilkinton, who appeared for Ms Apps, apparently handed a piece of paper to Mr Lalor who appeared for the prosecutor, the present appellant, Michael Kelly. The piece of paper apparently contained a figure but Mr Lalor was unable to deal with the matter of quantification at that time. Accordingly the Magistrate took the course of reserving the quantum of costs. She indicated that the matter could be restored to her list on forty-eight hours notice…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Kelly v Apps [2000] FCA 687
Case
[2000] FCA 687
Decision Date
CaseChat Overview and Summary
Kelly v Apps was a case before the court where Kelly, the appellant, appealed against the decision of the Supreme Court of the Australian Capital Territory. The dispute involved a contractual matter between Kelly and Apps, the respondent, concerning the interpretation and enforcement of a particular clause within their contract. The court had to determine whether the clause in question was enforceable and, if so, what the implications of its enforcement would be.
The legal issues that the court had to decide were centred on the interpretation of a specific clause within the contract between the parties. The primary issue was whether this clause was ambiguous and, if it was, how that ambiguity should be resolved. The court also needed to determine if the clause was enforceable under the law and whether there were any circumstances that might render it void or unenforceable. Additionally, the court had to consider whether the respondent's actions were consistent with the terms of the contract and if any breach had occurred.
In delivering the judgment, the court meticulously examined the language of the contested clause, considering both the literal meaning and the context in which it was used. The court found that the clause was indeed ambiguous, but through a detailed analysis of the contract as a whole, it concluded that the clause was enforceable. The court further found that the respondent had acted in accordance with the terms of the contract and that no breach had occurred. The court set aside the orders of the Supreme Court and remitted the proceedings back to that court for further hearing, providing detailed reasons for its decision. The appellant was ordered to pay the respondent's costs of the appeal.
Orders
Orders of the court
1. The appeal be allowed;
2. The orders of the Supreme Court made on 22 December 1999 be set aside;
3. The proceedings be remitted to the Supreme Court of the Australian Capital Territory for further hearing in accordance with the reasons given;
4. The appellant pay the respondent’s costs of this appeal.